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How Constellium should inform employers’ policies and practices 

Assume an employee writes the words “whore board” on company overtime sign-up sheets. Serious misconduct, right? In fact, the employer faced with this situation terminated the employee for offensive conduct.

In Constellium Rolled Products Ravenswood, LLC v. NLRB, the U.S. Court of Appeals for the District of Columbia agreed with a National Labor Relations Board (NLRB) decision finding the termination was unlawful. The case illustrates that National Labor Relations Act protections sometimes can trump an employer’s right to regulate potentially offensive language at work.…

Continue Reading When it comes to employee discipline, consistency is key

The United States Court of Appeals for the Third Circuit recently issued an opinion that reversed a decision by the National Labor Relations Board about whether a comment by a management representative was a threat to workers or a mere joke. The NLRB decision sheds interesting light on how remarks, such as this specific employer’s tweet, meant in jest can backfire. Fortunately for this employer, on appeal the Third Circuit “got the joke.”
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Continue Reading Third Circuit decides employer’s tweet was comedic, not coercive

Since the presidential inauguration, many employers have been wondering what changes President Joe Biden’s administration will make in the world of labor and employment law. This blog post summarizes a few key changes the Biden administration has already made, as well as a few changes the administration will likely make in the coming months.
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Continue Reading Biden administration expected to make major changes to labor and employment landscape

Continuing a trend towards reversal of case precedent, the NLRB has issued two decisions important to companies with union contracts. In Valley Hospital Medical Center, the Board considered whether an employer has the right to stop making dues deductions from employee paychecks after a collective bargaining agreement with the union expires. Dues deductions in collective bargaining agreements are common. Unions bargain aggressively for them because these provisions require the employer to automatically deduct union dues from employee paychecks and submit them directly to the union.
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Continue Reading NLRB shift on two important issues for union companies

The National Labor Relations Board (NLRB) governs certain rights of workers in union and non-union workplaces. NLRB cases impact such things as employee rights to complain about working conditions on behalf of oneself and others and the right to communicate to co-workers about interest in unionization. As a result, trends in NLRB decisions are important to all companies, union and non-union.
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Continue Reading Active NLRB is reversing many trends; union and non-union companies need to be aware

The National Labor Relations Board has issued a final rule governing joint-employer status under the National Labor Relations Act. This rule, published in the Federal Register on February 26, 2020, will take effect in late April 2020.

To be a joint employer under the final rule, a business must possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees.…

Continue Reading The new NLRB joint-employer rule

The National Labor Relations Board (NLRB or Board) invited interested parties to submit feedback about when an employee’s offensive or inappropriate workplace comments should lose the protection of the National Labor Relations Act (NLRA). Specifically, the NLRB is inviting employers and other parties to submit briefing about whether it should reconsider its standards for determining whether Section 7 of the NLRA protects employees who make “profane outbursts and offensive statements of a racial or sexual nature…during the course of otherwise protected activity.” By way of background, Section 7 of the NLRA gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” That can include raising work-related disputes or complaints. This right extends to all non-management employees, not just those represented by a union. But what if the employee raising specomplaints uses obscene or otherwise offensive language directed at a supervisor? In some NLRB cases, employee outbursts that have included offensive language have been shielded from punishment by the employer because the language was considered a part of protected speech.
Continue Reading NLRB invites businesses to provide feedback on when an employee’s offensive comments should lose the protection of federal labor law

On Sept. 6, 2019, the National Labor Relations Board (NLRB) granted a significant win to employers, ruling that businesses can lawfully limit the rights of nonemployee union supporters to access company property that is otherwise open to the public. In a 3-1 decision, the Board ruled that Kroger did not violate the National Labor Relations Act (NLRA) when it removed nonemployee union supporters from the parking lot of a Kroger store. The decision overruled a 2016 ruling by an NLRB administrative judge that Kroger had illegally barred two nonemployee representatives of the United Food and Commercial Workers Union from petitioning customers in the parking lot of a store in Portsmouth Virginia. The nonemployee union representatives were there to solicit customer support for the union’s protest over a decision to close the store and relocate employees to a different location 25 miles away.

The administrative law judge who initially heard the case ruled in favor of the union, noting that the grocery store’s managers had previously allowed several charitable entities to distribute literature and sell goods outside the store’s entrance. Applying Sandusky Mall Co., 329 NLRB 618 (1999), the administrative law judge held that Kroger violated the NLRA and discriminated against the union by regularly granting access to company property to civic, charitable and promotional activities by nonemployees while prohibiting nonemployee union representatives from petitioning on company property.
Continue Reading NLRB sides with Kroger’s action to remove union representatives from company property

The decision to classify a worker as an independent contractor, rather than as an employee, carries significant legal implications. Misclassifying employees as independent contractors can result in employer liability for unpaid payroll taxes, unpaid unemployment and workers’ compensation premiums, and responsibility for failure to provide the various rights afforded under employment laws to employees but…

On Jan. 25, 2019, the National Labor Relations Board (NLRB) addressed its independent contractor test in a case involving airport shuttle drivers for the franchise, SuperShuttle. The SuperShuttle DFW, Inc. decision overruled the NLRB’s 2014 decision in FedEx Home Delivery, which the Board criticized as incorrectly limiting the significance of a worker’s entrepreneurial opportunity for economic gain in determining independent contractor status.
Continue Reading NLRB overrules Obama-era precedent for independent contractor test